What Is Forum Shopping in Personal Injury Law?

Understanding Forum Shopping in Personal Injury Law

Forum shopping is the practice of choosing the most favorable court or jurisdiction in which to file a lawsuit. In personal injury law, the choice of forum can significantly affect the outcome of your case because different courts apply different laws, have different procedural rules, and draw from different jury pools. An experienced personal injury attorney understands these differences and strategically selects the forum that gives your case the best chance of success.

While the term "forum shopping" sometimes carries a negative connotation, the practice of selecting the most favorable forum is a legitimate and widely accepted part of legal strategy. Plaintiffs have the right to file their lawsuit in any court that has jurisdiction over the case, and choosing the most advantageous forum is a fundamental aspect of effective legal representation.

Understanding forum shopping is important for personal injury plaintiffs because the choice of forum can affect the applicable law, including statutes of limitations, damage caps, and comparative negligence rules. It can affect the procedural rules, including discovery procedures, trial procedures, and appeal rights. It can affect the jury pool, including the demographics, attitudes, and verdict tendencies of potential jurors. And it can affect the judges, including their experience with personal injury cases and their tendencies on key legal issues.

How Forum Shopping Works

Forum shopping involves analyzing the available forums and selecting the most favorable one.

Identifying Available Forums

The first step is identifying all courts that have jurisdiction over your case. A court must have both subject matter jurisdiction, the authority to hear the type of case, and personal jurisdiction, the authority over the defendant. Multiple courts may have jurisdiction over a single case.

State Court vs. Federal Court

In many personal injury cases, the plaintiff can choose between state court and federal court. State courts generally have jurisdiction over personal injury cases that arise within the state. Federal courts have jurisdiction when the parties are from different states and the amount in controversy exceeds $75,000, known as diversity jurisdiction.

Choosing Among State Courts

Within a single state, multiple courts may have jurisdiction over your case. You may be able to file in the county where the accident occurred, the county where the defendant resides, or the county where the defendant does business. Different counties within the same state can have very different jury pools and judicial tendencies.

Choosing Among States

If the accident involves parties from different states or occurred near a state border, you may be able to file in more than one state. Different states have different laws that can significantly affect the outcome of your case.

Factors That Influence Forum Selection

Several factors influence the choice of forum in personal injury cases.

Applicable Substantive Law

Different jurisdictions apply different substantive laws that can significantly affect your case. Key differences include statutes of limitations, which vary from one to six years for personal injury cases. Comparative negligence rules, with some states following pure comparative negligence, others following modified comparative negligence, and a few following contributory negligence. Damage caps, with some states capping non-economic damages or punitive damages. Joint and several liability rules, which determine whether each defendant is responsible for the full amount of damages or only their proportionate share. And collateral source rules, which determine whether evidence of insurance payments is admissible.

Procedural Rules

Different courts have different procedural rules that can affect the efficiency and outcome of your case. Key procedural differences include discovery rules, which affect your ability to obtain evidence from the defendant. Trial procedures, including jury selection, evidence presentation, and closing arguments. Motion practice, including the standards for summary judgment and other dispositive motions. And appeal rights and procedures.

Jury Pool

The demographics, attitudes, and verdict tendencies of the jury pool can significantly affect the outcome of your case. Urban jury pools tend to be more diverse and may be more sympathetic to plaintiffs, while rural jury pools may be more conservative. Jury pools in areas with large corporate employers may be more sympathetic to defendants.

Judicial Tendencies

Different judges have different tendencies on key legal issues, including evidentiary rulings, summary judgment standards, and damage awards. While you cannot always predict which judge will be assigned to your case, filing in a court with generally favorable judicial tendencies can improve your chances.

Verdict History

The verdict history of a particular court or jurisdiction provides insight into how juries in that area tend to decide personal injury cases and the range of damages they award. Courts with a history of higher verdicts may encourage higher settlement offers.

Convenience

Practical considerations such as the distance to the courthouse, the availability of witnesses, and the location of evidence can also influence forum selection.

Legal and Ethical Considerations

Forum shopping must be conducted within legal and ethical boundaries.

Jurisdictional Requirements

You can only file in a court that has proper jurisdiction over your case. Filing in a court that lacks jurisdiction will result in dismissal of your case.

Removal to Federal Court

If you file in state court, the defendant may have the right to remove the case to federal court if diversity jurisdiction exists. Understanding the removal rules helps you anticipate the defendant's response to your forum choice.

Transfer of Venue

The defendant may file a motion to transfer the case to a different court for the convenience of the parties and witnesses. Courts consider factors such as the location of the accident, the location of witnesses, and the connection between the forum and the case.

Forum Non Conveniens

The defendant may argue that the forum you selected is inconvenient and that the case should be dismissed in favor of a more appropriate forum. This doctrine is most commonly invoked when the case has little connection to the selected forum.

Ethical Obligations

Attorneys have ethical obligations to file cases in courts that have proper jurisdiction and to avoid filing in forums solely to harass or burden the defendant. However, selecting the most favorable forum among those with proper jurisdiction is a legitimate and expected part of legal practice.

Forum Shopping Strategies in Personal Injury Cases

Experienced attorneys use several strategies when selecting a forum.

Analyzing State Laws

Compare the substantive laws of all available states to identify the most favorable legal framework for your case. Key factors include the statute of limitations, comparative negligence rules, damage caps, and evidentiary rules.

Researching Jury Verdicts

Research jury verdicts in the available forums to identify courts with a history of favorable verdicts in similar cases. Verdict research databases provide information about verdict amounts, case types, and jury demographics.

Evaluating Judges

Research the judges in the available forums to identify courts with judges who have favorable tendencies on key legal issues. While you cannot choose your judge, filing in a court with generally favorable judges improves your chances.

Considering the Defendant's Response

Anticipate the defendant's response to your forum choice, including the possibility of removal to federal court, motions to transfer, and motions to dismiss for forum non conveniens.

Balancing Multiple Factors

The best forum is not always the one with the most favorable law or the highest verdicts. Consider all factors, including convenience, cost, and the likelihood of the defendant successfully challenging your forum choice.

The Impact of Forum Selection on Settlement

Forum selection can significantly affect settlement negotiations.

Settlement Leverage

Filing in a forum with a history of high verdicts and plaintiff-friendly laws gives you leverage in settlement negotiations. The defendant and their insurance company know that a trial in that forum could result in a large verdict.

Defense Strategy

The defendant's strategy may change based on the forum. In a plaintiff-friendly forum, the defendant may be more willing to settle early and for a higher amount. In a defendant-friendly forum, the defendant may be more aggressive in their defense.

Mediator Selection

The forum may affect the selection of mediators and the mediation process. Mediators familiar with the local jury pool and verdict history can provide more accurate assessments of case value.

Common Forum Shopping Scenarios

Several common scenarios illustrate how forum shopping works in practice.

Multi-State Car Accidents

When a car accident occurs near a state border or involves parties from different states, the plaintiff may be able to file in multiple states with different laws.

Product Liability Cases

Product liability cases often involve defendants from different states and can be filed in multiple jurisdictions. The choice of forum can affect the applicable product liability law and the available damages.

Trucking Accident Cases

Trucking accidents often involve parties from multiple states, including the driver, the trucking company, and the shipper. The plaintiff may have multiple forum options.

Medical Malpractice Cases

Medical malpractice cases may be subject to different damage caps and procedural requirements in different states, making forum selection particularly important.

Conclusion

Forum shopping is a legitimate and important aspect of personal injury litigation that can significantly affect the outcome of your case. By carefully analyzing the available forums and selecting the most favorable one, your attorney can maximize your chances of a successful outcome. Understanding how forum selection works helps you appreciate the strategic decisions your attorney makes on your behalf.

Use our free settlement calculator to get an estimate of what your injury claim may be worth. Understanding the potential value of your case helps you make informed decisions about forum selection and litigation strategy.